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The Effective Enjoyment of Rights

By Richard E. Parker
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Suggested Citation: Richard E. Parker, The Effective Enjoyment of Rights, 12 German Law Journal 451-464 (2011), available at
Claims of "rights" involve abstraction – to some extent anyway – from immediate social and political context. Academic discussion of the topic very often magnifies the abstraction. At the same time, abstraction is itself sometimes identified as the central "problem" in rights theory – and so becomes the focus of discussion of the topic. It is the focus of Professor Denninger's paper. It is also the focus of mine.

Since I have no familiarity with the setting in which Professor Denninger confronts and seeks to move beyond abstraction in talk about rights – I know nothing of the theoretical writing or FCC decisions he refers to – I can only comment on his paper by looking at it from my American perspective. I am aware that I am bound to distort his argument, but unaware of any way to avoid it. The best I can do is to begin with a little sketch of the American context from which I'll approach Professor Denninger's discussion.

In America, there are various schools of thought that resist "excessive" abstraction in argument about rights.  The "critical" school, first of all, views abstraction as a poison suffusing rights discourse. On this view, invocation of rights involves reification. It involves, that is, portrayal of "rights" as having a transcendent existence and power over us, abstracted from our will, separate from our world. On this view, also, rights discourse involves isolation. That is, it involves a portrayal of "rights-holders" as isolated – abstracted – from others, from their social situation, from the web of power relationships that bind them. The rhetoric of rights, on this view, is pernicious, fooling us into a state of disempowerment.

The other two schools of thought recognize that abstraction is an important aspect of rights discourse. But they deny...